On Point blog, page 11 of 23
Even with tolling due to discovery of new evidence, habeas petition was untimely
Myron A. Gladney v. William Pollard, 7th Circuit Court of Appeals No. 13-3141, 8/26/15
In 2013 Gladney filed a habeas petition challenging his state conviction, which became final in 1999. The district court properly dismissed the petition as untimely because even if the limitations period could have been tolled until Gladney found out about his counsel’s failure to interview a defense witness, his petition would still have been filed well outside the adjusted limitations period. Nor can Gladney satisfy the narrow “actual innocence” exception under Schlup v. Delo, 513 U.S. 298 (1995), to disregard the time limits for seeking federal habeas relief.
Seventh Circuit affirms stance on successive habeas petitions challenging convictions undisturbed by prior petitions
Benjamin Barry Kramer v. United States, 7th Circuit Court of Appeals No. 14-3049, 8/17/15
Sticking with its decision in Suggs v. United States, 705 F.3d 279 (7th Cir. 2013), the Seventh Circuit holds that Kramer’s most recent habeas petition challenging a conviction that was not affected by his three previous petitions is a second or successive petition and Kramer therefore needed authorization to file the petition from the Court of Appeals under 28 U.S.C. § 2244(b)(3)(A).
Conviction mooted habeas claim regarding pretrial extradition issue
Andre Jackson v. Marc Clements, 7th Circuit Court of Appeals No. 15-1145, 8/12/15
Jackson’s habeas petition under 28 U.S.C. § 2241 challenging his extradition from Illinois to Wisconsin became moot once he was convicted in Wisconsin of the charges for which he was extradited.
Certificate of appealability denied; habeas petitioner failed to make substantial showing of denial of constitutional right
Humberto Sanchez-Rengifo v. J.F. Caraway, 7th Circuit Court of Appeals Case No. 14-2876, 8/14/15
Sanchez-Rengifo sought relief from his conviction for sexual assault by filing a habeas petition under 28 U.S.C. § 2241 arguing the evidence was insufficient to prove his guilt. The district court dismissed the petition on the grounds that the petition should have been filed under 28 U.S.C. § 2255 unless that route is “inadequate or ineffective to test the legality of his detention”—a showing Sanchez-Rengifo failed to make. Though the district court applied the wrong statute, it doesn’t matter because Sanchez-Rengifo hasn’t met the standard for getting a certificate of appealability.
Seventh Circuit rejects habeas claim, but cautions about improper use of “course of investigation” rationale for getting around hearsay objections
Renardo Carter v. Timothy Douma, 7th Circuit Court of Appeals No. 13-3312, 8/6/15
Carter’s trial counsel failed to object to a police officer’s testimony about the hearsay statements of a confidential informant who said Carter was involved in drug dealing. While the Wisconsin Court of Appeals reasonably concluded that the failure to object didn’t prejudice Carter, the Seventh Circuit issues a useful warning about the improper use of the “course of investigation” rationale for admitting out-of-court statements.
Seventh Circuit gives retroactive effect to Johnson’s invalidation of the ACCA’s residual clause
Benjamin Price v. United States, 7th Circuit Court of Appeals No. 15-2427, 8/4/15
Price seeks to bring a successive collateral attack under 28 U.S.C. § 2244(b)(3) to the enhancement of his sentence under the Armed Career Criminal Act. He claims that Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the imposition of an enhanced sentence under the residual clause of ACCA violates due process, announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions. The Seventh Circuit agrees.
State court reasonably rejected claim that defendant was denied the right to represent himself
Laderian McGhee v. Michael A. Dittmann, 7th Circuit Court of Appeals No. 14-1763, 7/22/15
The Wisconsin Court of Appeals reasonably applied federal law in rejecting McGhee’s claim that he was denied the right to self-representation under Faretta v. California, 422 U.S. 806 (1975).
State appellate court didn’t err in denying defendant’s fair trial claim
Cory M. Welch v. Randall Hepp, 7th Circuit Court of Appeals No. 14-1164, 7/14/15
The Wisconsin Court of Appeals rejected Welch’s claim that he was denied a fair trial because of two improper comments by two witnesses. His habeas petition was denied by the district court, and the Seventh Circuit affirms, holding Welch has not shown that the Wisconsin appellate court’s decision was “so lacking in justification” that there is no possibility for “fairminded disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Court of appeals had no jurisdiction to review district court’s dismissal of habeas petition without prejudice
Robert Gacho v. Kim Butler, 7th Circuit Court of Appeals No. 13-3911, 7/2/15
The dismissal of Gacho’s habeas petition without prejudice to refiling makes the dismissal order non-final; because the court of appeals’ jurisdiction extends only to final orders, his appeal is dismissed.
Person committed as sexually violent person can’t collaterally attack underlying criminal conviction after sentence has expired
Kevin Stanbridge v. Gregory Scott, Seventh Circuit Court of Appeals Nos. 14-1548 & 14-2114, 6/29/15
While Stanbridge’s prior sexual abuse conviction is a necessary predicate for his current confinement as a sexually violent person, once the sentence for the conviction expired he is no longer “in custody” for that conviction for purposes of bringing a collateral attack against the conviction.